Opinion
Submitted October 17th, 1944.
Decided January 4, 1945.
1. Appellant filed a bill in Chancery setting forth that respondent was then indebted to her in the amount of $5,756 for alimony arrearage accumulated since April, 1940, and prayed for payment and discovery; that respondent be directed to pay the continuing sum of $35 per week or such suitable support and maintenance as the court might determine, and that he post reasonable security therefor.
2. Thereafter appellant filed a notice of motion for alimony pendente lite and counsel fee, which was denied after hearing. Held, the allowance of alimony and counsel fee in a suit of this nature is a matter resting in the sound discretion of the Court of Chancery. Denial affirmed.
On appeal from the Court of Chancery.
Mr. Peter Cohn, for the appellant.
Mr. Benjamin Potoker, for the respondent.
This appeal is from an order in Chancery denying alimony, counsel fees and suit moneys pendente lite.
The parties were married in 1917, and resided together in the State of New York until 1933. They have one child adopted by them in 1929. In 1934 respondent abandoned appellant and took up residence with another woman with whom he has since lived. He became a resident of this state in 1940 and appears to have continuously resided here thereafter.
Appellant obtained a final judgment and decree of legal separation from respondent in New York in 1939, wherein it was ordered that respondent should pay appellant permanent alimony in the amount of $35 per week. An application to the New York court to reduce this amount of alimony was denied. After taking up residence in this state respondent was returned to New York under an indictment and in that action he was ordered to pay appellant $8 per week for the support of the adopted child. He has paid nothing on the alimony order since April 5th, 1940, but, it appears, he is current in his payments as ordered for the maintenance of the child.
On November 3d 1943, appellant filed a bill of complaint in our Court of Chancery setting forth that respondent was then indebted to her in the amount of $5,756 for alimony arrearage and prayed for payment and discovery and, as well, that he be directed to pay the continuing sum of $35 per week or such suitable support and maintenance as the court might determine and that he post reasonable security therefor.
On December 7th, 1943, appellant filed a notice of motion for alimony pendente lite and the court having heard this matter upon the petition of appellant and the affidavits of both parties advised the order denying motion and it is from the entry of this order that appeal is made.
The matter of allowance of temporary alimony and counsel fee in a suit of this nature is a matter which rests in the sound discretion of the Court of Chancery. Acheson v. Acheson, 124 N.J. Eq. 12, 13. Examination of the papers filed in the cause, together with a study of the brief of appellant does not lead us to the conclusion that the learned advisory master was guilty of any abuse of discretion in this matter. The alimony arrearage having accrued since April 5th, 1940, the denial of temporary alimony and counsel fee at this time does not produce "a shock to reason and to justice." Nelson v. Eastern Air Lines, Inc., 128 N.J. Law 46, 58.
The order under review is affirmed.
For affirmance — THE CHIEF-JUSTICE, PARKER, CASE, BODINE, DONGES, PERSKIE, PORTER, COLIE, WELLS, RAFFERTY, HAGUE, THOMPSON, DILL, JJ. 13.
For reversal — None.